Coronavirus and METS: Having Employment Law Issues?

The ongoing coronavirus pandemic continues to have severe and worsening impacts on Australian businesses, with the METS sector no exception. With disruptions to business continuing and many METS companies facing significant downturns in demand, all business should have in place a response plan and how to best manage the impacts.

One of the most difficult areas for all METS businesses to deal with in these times will be how to handle employees. There are a number of employment law related issues that companies will need to consider on this point. What are the company’s policies on leave and flexible working and are these adequate? What government assistance is available to be able to maintain employees’ salaries in the event that there are cash flow issues? At this stage, we are in unchartered waters and not all the answers are available, however, in today’s post we will discuss some of the most common issues some of our METS clients are asking us about.

We encourage all employers to keep updated on the Fair Work Ombudsman’s website, which is updating daily with new guidelines and important changes to awards etc. It is also critical that employers keep on top of health information provided by relevant public health authorities.

What happens if an employee or their family member is diagnosed with Coronavirus?

Employees who are sick with coronavirus will not be able to attend the workplace due to workplace health and safety obligations, meaning that employers are able to direct employees who are sick with coronavirus to not come to work. Where possible, it may be arranged for them to work from home. If this is not possible, full time and part time permanent workers are entitled to paid sick leave if they are unwell with coronavirus.

Similarly, it an employee needs to look after a family who has coronavirus, they are able to take paid carer’s leave.

If an employer is concerned about an employee’s fitness to work or whether they are able to return to work after being unwell, they can request that the employee provide evidence that they are able to be working. Employers are also able to request that an employee to undergo an independent medical assessment, but this will be at the employer’s own expense.

What happens if an employee needs to self-isolate?

If someone is required to self-isolate because of coronavirus, due to travel or by way of being in close contact with someone who has been diagnosed, employers and employees will need to come to their own arrangement, because the Fair Work Act does not provide specific guidance for these extraordinary situations.

The types of arrangements may include working from home where possible, taking sick leave if the employee is unwell, taking other types of leave available to them (such as annual or long service leave), or unpaid leave.

Can an employer stand down employees?

Standing down employees is an option already being used by some companies, such as Qantas. This means that employees are stood down without pay for a period of time when there is a stoppage of work, but remain employed by the employer for the time when work resumes.

Under the Fair Work Act, to be able to stand down employees, the employer needs to demonstrate:

There is a stoppage of work;

The employee cannot be usefully employed (this is not limited to just normal work duties – that is, there are no alternative duties); and

The employer cannot be reasonably held responsible for the cause of the stoppage.

Employers should first consider alternatives to standing down employees, including seeking employees’ agreement to take paid or unpaid leave for a period of time.

Employers must use this option with caution, given that if it is later found that an employer unlawfully stood down an employee, that employee will be able to recover their wages for the period of stoppage. For example, this is not an option merely because business has slowed down, and must be due to a complete stoppage (for example, a cinema that is closed down due to an enforceable government direction).

What about where employees cannot work from home?

For many METS companies, working at home will not be an option. Some companies may even need to send employees out to sites as part of providing essential services. In these cases, the employer has a responsibility to minimise the risk of infection. METS companies will need to review their policies to ensure that they are meeting this responsibility and the challenge presented by coronavirus. This may include things like: ensuring access to hand sanitizer in the workplace; providing hygiene stations in all areas with soap and hand towels; reviewing safety equipment provided to employees; limiting visitors to the workplace; and reminding staff of the importance of hygiene measures.

What happens if an employer needs to let employees go?

If an employer is not able to use any of the options available to them, then they may need to consider making employees redundant. Employees are still entitled to all applicable entitlements, which may include redundancy payment, notice, and payout of any unused leave.

Employers should only take this option as a last resort –this an expensive and stressful option for all involved, and it should be kept in mind that while for now we still don’t have a good idea of how long or short these disruptions will be, it will still only be temporary. Maintaining employees will allow businesses to get back up and running as soon as possible once things start getting back to normal, and government assistance is available to assist employers to do just this.

What government assistance is available for employers?

Another key reason why employers should keep employees on where possible is that the government has announced a series of stimulus packages and relief for businesses and employers, many with the specific aim and ensuring that employers are able to stay afloat and keep paying salaries in these difficult times. Primarily, the JobKeeper payment will pay eligible employers $1,500 per fortnight per employee so they are able to continue paying their employees. This will be paid by the ATO directly to employers. This payment is intended to support employers to maintain their connections with employees, and will allow businesses to “reactivate” operations quickly without having to go through the rehire process.

Employers will be eligible for this subsidy if they meet the following criteria:

Their business turnover is less than $1 billion, and their turnover has fallen by more than 30 per cent for at least a month’s time; or

Their business turnover is $1 billion or more, and their turnover has fallen by more than 50 per cent for at least a month’s time; and

The business is not subject to the Major Bank Levy.

The subsidy will start on 30 March 2020, with the first payments to be made to employers during the first week of May.

This payment will not be automatic, and employers will need to apply. At the moment, you can register your interest at the ATO website to receive further updates.

Is there anything else to take into account?

Employers always needs to consider the impact that any relevant awards, enterprise agreements or contracts will have on their obligations. Employment law is a complicated area, so employers should always get legal advice before taking any action to avoid any costly disputes further down the track.

Conclusion

The coronavirus and stopping its further spread presents an unprecedented public health challenge, the METS industry has its part to play in this. Employers should remain positive, and be flexible and understanding with their employees. By taking advantage of the government stimulus packages so as to avoid having to either stand down or make employees redundant, METS employers will be strongly placed to get their businesses up and running quickly once the crisis has passed.

Harris Gomez Group is an Australian law firm with 25 years experience based in Sydney, with sister offices in Santiago and Bogotá. We specialise in technology law, cross-border issues and corporations law. Many of our clients are technology companies, service providers and engineering companies that focus on the mining, energy and infrastructure markets.

To better understand how we can support your management team, please contact Harris Gomez at hmg@hgomezgroup.com or visit the Harris Gomez Group Website